NDAA Concerns and Facts

The National Defense Authorization Act (NDAA) is a federal law that has been enacted for each of the past 48 years to specify the budget and expenditures of the United States Department of Defense.

After the September 11th terrorist attacks, the NDAA text affirmed the President’s authority to detain, via the Armed Forces, any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces,” under the law of war, “without trial, until the end of hostilities.” The text also authorizes trial by military tribunal, or “transfer to the custody or control of the person’s country of origin,” or transfer to “any other foreign country, or any other foreign entity.” An amendment to the Act that would have explicitly forbidden the indefinite detention of American citizens, without trial, was rejected.

Addressing previous conflict with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text also affirms that nothing in the Act “is intended to limit or expand the authority of the President or the scope of the Authority for Use of Military Force.”

Lawfareblog answers the most important question concerning the recent controversy:

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either. Congress ultimately included language in the NDAA expressly designed to leave this question untouched–that is, governed by pre-existing law, which as we explain below is unsettled on this question.

The confusion associated with the NDAA’s treatment of the citizenship issue is understandable. First, the NDAA’s text relevant to this question changed quite a bit over time. Second, the relationship of the NDAA to pre-existing detention authority is difficult to follow if one does not keep up with this area regularly. So let’s begin with an overview of that pre-existing authority, before turning to the NDAA itself.

During the administration of George W. Bush, the government used its detention authority under the AUMF (described above) in two instances involving U.S. citizens. The first involved Yaser Hamdi, who was captured by Northern Alliance forces in Afghanistan in late 2001 and then later turned over to U.S. forces. He was at GTMO when the government determined he had a claim to US citizenship by virtue of having been born in Louisiana, and accordingly the government moved him to a military facility within the United States. A habeas proceeding followed, and ultimately went all the way to the Supreme Court. In 2004, the Court held that (i) the government’s authority to detain under the AUMF at least included armed members of the Taliban captured in Afghanistan (at least so long as fighting continued there), (ii) citizenship was no bar to detention in that circumstance, and (iii) citizenship did, however, entitle a detainee to a fair opportunity to contest the factual claims asserted by the government in support of detention.

Meanwhile, the government had arrested a suspected al Qaeda member–and U.S. citizen–named Jose Padilla, taking him into custody at O’Hare Airport in Chicago. He eventually ended up in military custody, and he too brought a habeas proceeding. To make a long story very short, his case first proceeded through the Second Circuit Court of Appeals, a panel of which concluded that detention authority under the AUMF did not apply to a citizen suspected of being an al Qaeda member and captured in the U.S. After the Supreme Court required the petition to be refiled and relitigated in the Fourth Circuit (because that is where Padilla actually was held), a district court judge took the same position, but on appeal a Fourth Circuit panel held that Padilla could lawfully be detained after all–though in so holding, the panel focused on the factual assumption that Padilla had, like Hamdi, been on the battlefield in Afghanistan previously. The case was then set to go before the Supreme Court, but before it could weigh in on the merits, Padilla was shifted into civilian custody for a criminal trial (he was convicted, and is now in prison).

The government has not asserted authority to detain a citizen under the AUMF since this time, so the question of citizen detention has remained unsettled ever since. Which brings us at last to the NDAA.

An earlier version of the NDAA in the Senate contained language that strongly implied, without quite saying it, that citizens were included within the general grant of detention authority discussed above (see Bobby’s contemporaneous assessment here). This generated much debate and criticism, and eventually a group of senators offered an amendment to state explicitly that citizens could not be detained under the NDAA’s restatement of detention authority. That amendment was rejected, and at that point, Senator Feinstein offered a compromise, fall-back amendment stating simply that nothing in the NDAA should be taken to address this issue one way or the other. The explicit idea was to preserve the unsettled status quo described above, leaving it to the courts to determine if detention authority extends to citizens should the government ever again attempt to assert it (see here and here). That is the position on which the NDAA has now settled (here).

Freshman Rep. Jeff Landry (R-La.) told The Hill on Monday that he has a commitment from House Armed Services Committee Chairman Buck McKeon (R-Calif.) to revisit the National Defense Authorization Act (NDAA) to ensure that language related to detainees does not give the U.S. government new rights to hold U.S. citizens without due process.

“We have assurances that they would work to clarify the language,” Landry told The Hill. “I have a commitment from the chairman that the type of language I have is the type of language he would use to clarify that.”

Landry has introduced H.R. 3676, which would amend the NDAA by saying that “no United States citizen may be detained against his or her will without all the rights of due process afforded to the citizen in a court ordained or established by or under Article III of the Constitution of the United States.”The language in the NDAA bill approved last week reaffirms the authority of the government to detain suspected terrorist associates and requires military detention of anyone who plots an attack against the United States. The bill does say explicitly that no new authority is created to detain U.S. citizens, and that the military detention language does not apply to citizens.